Citation Nr: 1401351 Decision Date: 01/10/14 Archive Date: 01/23/14 DOCKET NO. 10-42 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a back disorder, to include as secondary to a service-connected disease or injury. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and his father ATTORNEY FOR THE BOARD U. Ifon, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1995 to July 1999. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of the VA Regional Office (RO) in Waco, Texas. The Veteran was afforded a Travel Board hearing at Waco, Texas in April 2012. The Veterans Law Judge who convened the 2012 hearing is no longer available, and in February 2013, the Veteran was offered the opportunity to appear for another hearing. See 38 C.F.R. § 20.707 (2013). Since the Veteran did not respond to the offer, the Board has presumed he does not desire another hearing. Accordingly, the Board will consider the hearing testimony along with all the relevant evidence of record. In May 2013, this matter came before the Board and was, in pertinent part, remanded for additional evidentiary development. The Board finds there has not been substantial compliance with the Board's remand directives and additional evidentiary development is still required. Stegall v. West, 11 Vet. App. 268 (1998). A review of the Veteran's Virtual VA file reveals pertinent records as noted in the facts below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran is seeking service connection for a back disorder which he contends is related to his military service. As previously noted, the Board remanded this matter for additional evidentiary development in May 2013. Part of the Board's directives requested that the Veteran be afforded a new VA examination to obtain an opinion as to whether the etiology of his back condition was directly related to service, or secondary to a service-connected disability. The Veteran attended a new VA examination in July 2013. In determining whether the Veteran's current back condition was directly related to his military service, the examiner appears to have relied on inaccurate facts. Specifically, the examiner stated that in September 2009, private physician J.M. made an unsubstantiated diagnosis of spondylolisthesis and spondylolysis. A review of the record, however, shows that Dr. J.M. was merely recounting the diagnoses from a July 2008 VA examination. Clarification is needed as to whether this would change the examiner's opinion. In addition, the examiner commented that linking the Veteran's current back condition to his military service "would be speculation at best," without further explanation. An explanation is needed for a speculative opinion. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). For the reasons stated above, the July 2013 VA opinion is inadequate in view of the current record, and must be returned for clarification. Inasmuch as the case is being remanded, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain copies of all outstanding VA treatment records dated since July 2013 and associate them with the record. The Veteran should be contacted to identify any records that might be outstanding, as needed. This includes any private treatment that he might have had. All attempts to obtain records should be documented in the claims file. 2. After the aforementioned development has been completed, refer the Veteran's claims file to the July 2013 VA examiner who conducted the VA examination or, if unavailable, to another suitably qualified VA examiner for a clarifying opinion as to the nature and etiology of the Veteran's back condition. After reviewing the record again, clarify the following: (a) Reconsider Dr. J.M.'s statement from September 2009 and comment on the significance, if any, of the diagnoses from the July 2008 VA examination. (b) Based on the findings above, reconsider whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's current back condition had its clinical onset during the Veteran's active military service. (c) If a response cannot be provided without resorting to speculation, explain why a response would be speculative. The examiner should also comment on the cause of the Veteran's current back condition, and indicate whether the type of disability found is consistent with his injuries in service or is more likely related to infection, disease, advancing age, or other non-service related cause. 3. Readjudicate the issue on appeal. If the benefit sought remains denied, provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time for response. Thereafter, the case should be remanded to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).